Opinion
2011-10-4
MIN CAPITAL CORP. RETIREMENT TRUST, respondent,v.Jed PAVLIN, et al., appellants, et al., defendants.
Martin Silver, P.C., Hauppauge, N.Y. (Richard E. Trachtenberg of counsel), for appellants.Peter T. Roach and Associates, P.C., Syosset, N.Y. (Scott A. Koltun of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Jed Pavlin and Caroline Pavlin appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohen, J.), dated July 7, 2010, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage on real property owned by the defendants Jed Pavlin and Caroline Pavlin (hereinafter together the defendants). The plaintiff moved, inter alia, for summary judgment on the complaint, and the defendants cross-moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the loan agreement was usurious. The Supreme Court denied both motions, and this appeal by the defendants ensued.
“The maximum interest rate permissible on a loan is 16% per annum, and any interest rate in excess of that amount is usurious” ( O'Donovan v. Galinski, 62 A.D.3d 769, 769, 878 N.Y.S.2d 443; see General Obligations Law § 5–501 [1]; Banking Law § 14–a[1]; Matias v. Arango, 289 A.D.2d 459, 460, 735 N.Y.S.2d 157). “In determining whether a transaction is usurious, the law looks not to its form, but its substance, or real character” ( O'Donovan v. Galinski, 62 A.D.3d at 769, 878 N.Y.S.2d 443 [internal quotation marks omitted] ). Here, the defendants failed to establish, prima facie, that the loan agreement was usurious. The note is not usurious on its face ( see
Freitas v. Geddes Sav. & Loan Assn., 63 N.Y.2d 254, 262, 481 N.Y.S.2d 665, 471 N.E.2d 437).
Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied the defendants' cross motion, regardless of the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
PRUDENTI, P.J., HALL, AUSTIN and ROMAN, JJ., concur.